McKay v North Sydney Council

The general aims and objectives of the LEP, as set out in cl 2, include the following: (d) to ensure that development on land at or near the foreshores of Port Jackson is designed so as to take into consideration the appearance of the land and development when viewed from Port Jackson;

The general objectives of residential zones set out in the table to cl 9 at p 18-19 of the plan include the following: … (d) to ensure that residential development is carried out in an orderly manner without adversely affecting the scale and character of a locality and to ensure that new housing is compatible with the surrounding existing development; … (h) to maintain and enhance the environmental quality of all lands, including foreshore lands; (i) to make provision for foreshore building lines; …

Clause 9 itself provides as follows: (1) Except as otherwise provided in this plan, in relation to land within a zone specified in the Table to this clause, the purpose (if any) for which - (a) development may be carried out without development consent; or (b) development may be carried out only with development consent; or (c) development is prohibited are specified as separate items under the headings: 1. Without development consent; 2. Only with development consent; and 3. Prohibited, respectively, appearing in the matter relating to the zone. (2) Where the Table to this clause specifies the objectives of a zone or zones, the Council shall not consent to development which, in its opinion, is inconsistent with the objectives specified in relation to the zone in which the development is proposed to be carried out. The EP&A Act

" Prohibited development " is defined in s. 4 of the Environmental Planning and Assessment Act 1979 (EP&A Act) as:

(a) development the carrying out of which is prohibited on land by the provisions of an environmental planning instrument that apply to the land.

In contrast, the term " development standard" is defined as: provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing requirements or standards in respect of … [a number of listed topics].

Without limiting the generality of section 26 (1) (b), an environmental planning instrument may provide that development specified therein is prohibited

Expressions used in an environmental planning instrument shall, unless the contrary intention appears, have the same meanings respectively as they have in this Act.

Development that is prohibited If: (a) an environmental planning instrument provides that specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land.

The Council relies upon the above provisions to submit that a word of " prohibition " in the LEP must have the same meaning as it has in the EP&A Act, namely that under s 76B, i.e. prohibited development may not be carried out under any circumstances.

In Bell & Anor v Shellharbour Municipal Council (1993) 78 LGERA 429 (" Bell "), Cripps JA (a former long-serving judge and Chief Judge of this court) said at 432-433: In the course of argument, reference was made by both counsel to a number of decisions dealing with certain clauses in planning instruments and the amenability of those clauses to the dispensing power in State Environmental Planning Policy No. 1 … I trust I do no disservice to the arguments presented when I say it is unnecessary in this appeal to deal with these cases. There is, self-evidently, a difference between a clause absolutely prohibiting development on the one hand and a clause regulating development by specifying requirements or fixing standards on the other. Whether a particular clause in a local environmental planning instrument has the effect of regulating or prohibiting development is a matter of construction. In some of the cases the Court has held that the relevant clause was an absolute prohibition - in others it was held that the clause was regulatory. But, as was pointed out in Mayoh , the obligation of the Court is to interpret the clause in the instrument before it. [emphasis added].

The applicant has relied on two specific cases, Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114 and Farrell v Orange City Council (1991) 71 LGRA 370.

In Quinn, Cripps J (then Chief Judge of this court) took the view that cl 22 of the Leichhardt LEP did not prohibit the erection of a dwelling house but simply laid down a requirement that it must be sited on a particular part of the land. His Honour consequently held that clause to be a development standard.

For completeness, I set out cl 22 of Leichhardt LEP 20 (quoted by Cripps J at 115): (1) Subject to subclauses (2) and (3), a building shall not be erected between a foreshore building line and foreshore to which that line relates. (2) The council may, after taking into consideration the probable aesthetic appearance of the proposed building or work in relation to the foreshore, consent to - (a) the erection of baths, boat sheds, dressing sheds, wharves, jetties or swimming pools; or (b) the extension, alteration or rebuilding of a building which encroaches the foreshore building line, on land between a foreshore building line and the foreshore to which that line relates. (3) The Council shall not grant consent under subclause (2)(b) in respect of any alteration, extension or rebuilding, where - (a) the total encroaching floor area will be increased by more than 10% over the encroaching floor area as it was on the appointed day; or (b) the building as altered, extended or rebuilt will be closer to the foreshore than the building as it was on the appointed day.

However, while cl 22 dealt with a foreshore building line, the judgment did little more than construe the clause such that the line in all the circumstances of that case was held to be a development standard.

Council further draws a distinction between the terms of that cl 22 and cl 29 in this case, viz , that the clause in Quinn provided " shall not be erected ", yet cl 29 provides " is prohibited ".

In Farrell , Bignold J construed what he described as an " express prohibition " to operate as a development standard and held that it was amenable to SEPP 1. As Counsel for the Council, however, points out, it is clear from His Honour's judgment that the control in question was agreed to be a development standard (at 371) and the argument was whether or not it was amenable to SEPP 1. His Honour distinguished Woollahra Municipal Council v Carr (1985) 62 LGRA 263 to hold that SEPP 1 was available, saying (at 373): That prohibition being formulated by reference to the imposition of that development standard is, in my opinion, as a matter of necessary implication, to be interpreted as being subject to the operation of State Policy No 1 in relation to that development standard.

The examination of these two cases brings me to accept the general principle espoused by Cripps J in Bell that the terms of each particular clause must be interpreted having regard to that clause's particular context, and that a decision in respect of one development standard or prohibition is of little assistance in the interpretation of another.

Farrell cannot, therefore, be regarded as authority for the proposition that the term " prohibition ", in the context of any particular clause, including cl 29, must mean development standard, any more than Quinn can be relied upon as authority for the proposition that foreshore building lines are relevantly always development standards.

Dixson v Wingecarribee Shire Council (Lloyd J, [1999] NSWLEC 105) (" Dixson" ) and Pancho Properties Pty Ltd v Wingecarribee Shire Council ( Talbot J, [1999] NSWLEC 245) (" Pancho" ) are two other examples which illustrate how the judges of this Court have applied these general principles but come to opposite conclusions.

North Sydney Municipal Council v Mayoh Pty Ltd (1990) 71 LGRA 222 (" Mayoh ") is a notable case in a long line of authorities on this vexed question and the tests quoted by Mahoney JA and Clarke JA are frequently referred to (for example in Dixson at pars 27-32 and Pancho at par 119-123).

In Mayoh, the words " shall not be erected " were employed in the relevant clause (cl 14A) of the same LEP as is involved in this case. Mahoney JA (at 233) took the approach that " the intention of an instrument is to be derived from the words which have been used and the meaning of them in the context" and concluded that cl 14A " prohibited " the erection of the relevant kind of building rather than affecting the method in which development is carried out. Furthermore, His Honour stated that the purpose of cl 14A was not to relate to the standards to apply to development, but whether development was carried out at all.

Clause 9 still stands in the terms which applied at the time of Mayoh and is relevant to this case in determining the intention of cl 29. Clause 9 draws a distinction in various zones between that which may be carried out with development consent, that which may be carried out without development consent, and that which is prohibited. Clause 29 operates to supplement and qualify the zoning table in cl 9. The opening words of cl 9 " except as otherwise provided" make it plain that other provisions (like cl 29), which bear on land use, appear later in the LEP and are intended to have operative effect notwithstanding that there is a measure of inconsistency between those clauses (see Clarke JA in Mayoh at 235).

Therefore, the question remains: does cl 29 have as its purpose the prohibition of development of a kind that was not stated in the clause, namely, in this case, cantilevered terracing?

The applicant submits that the answer to this question is " no ", as cl 29 is a development standard " by or under which requirements are specified or standards are fixed in respect of any aspect of a development " (as defined under s 4 EP&A Act). I must disagree with this submission.

Clarke JA in Mayoh (at 236) quoted Holland J in Kruf v Warringah Shire Council (NSWLEC, 15 December 1988, unreported) (" Kruf ") as stating: ...it is not possible sensibly to say that an absolute prohibition on a form of development in a specified locality of under specified conditions is setting a standard for that form of development. It is saying that there shall be no such development, not that there may be such development only if it complies with certain requirements or standards.

Despite the fact that a number of decisions of this court have distinguished the decision in Kruf , Clarke JA in Mayoh (at 237) concluded that this should not be of great concern, because " decisions on other clauses in other instruments, particularly if they concern provisions markedly different to the one under consideration, are, at best, of limited assistance" , and that " the actual decision has no relevance " to other decisions.

I see no need to read down the word " prohibited " in its context. Clause 29, as shown above, prohibits, in terms, certain development on identified land, and thus goes to the heart of development control rather than its regulation.

Although cl 29 is different in form from cl 14A in Mayoh , in that cl 29 does not prohibit a specific type of development, it nevertheless has the effect of prohibiting any development, subject to exceptions.

If a provision is clear on its face, there is no need to go any further into detailed analysis. I have come to the view that no other interpretation of cl 29(3) is reasonably open when regard is had to:

1. The words used in the clause. 2. The balance of the instrument read as a whole, particularly having regard to the provisions of cl 9, the objectives of the plan, and the objectives of the residential zone. Conclusion

I construe cl 29 to be prohibitive of development, and not just prescriptive of standards.

I, therefore, conclude that it is not a development standard within the meaning of s 4 of the EP&A Act and that it is, therefore, not amenable to the provisions of SEPP 1.

Accordingly, that part of the development which encroaches on the foreshore building line and is prohibited under cl 29 , viz, the cantilevered terrace, cannot be approved.

I answer the question of law " No " and remit the appeal to Commissioner Brown for final determination in accordance with this judgment.

The exhibits should remain with the file until that takes place.

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